In 1967, echoes of Newark in Plainfield

Ed. note: The Governor's Select Commission on Civil Disorder, or Lilley Commission, convened after '67 riots, produced a landmark report. Yesterday the commission's surviving members met for a panel discussion at the Newark Museum. On Nov. 8, another panel, "40 Years After: The Newark Riots and the Jewish Community," will meet at the Alex Aidekman Family Jewish Community Campus in Whippany.

Rioting was not limited to the City of Newark in the summer of 1967. Plainfield had its own incident.

The unique aspect of the Plainfield situation was that in the middle of the unrest there had been a burglary at a nearby gun factory and 46 carbines had been reported missing. Five days after the outbreak, when the situation in Plainfield was almost back to normal, Governor Hughes authorized the State Police to conduct a search of the all-black West End housing project to search for the guns.

The cops went through at least 26 apartments but found none of the missing weapons. The police had no search warrant, but justified the action on the basis of a declaration of an emergency signed by Hughes three days earlier during the height of the unrest.

The local ACLU director had spent a Saturday afternoon on the streets around the apartment development signing up plaintiffs for a civil suit against the governor for illegal searches. He enlisted 63 persons who said they had been victims of the search and wanted to join in the suit. He asked me and an old colleague, Leonard Weinglass, to handle the case.

Coincidentally, both Len and I had worked for Hughes in Bergen County during his first run for governor in 1961. At the time, I was the executive director of the Bergen County Democratic Organization and Len directed the Independent Citizens for Hughes campaign.

Len had recently resigned as an assistant attorney general and as general counsel to the New Jersey National Guard and opened a law office in Newark across the street from the Law School. He was already representing Tom Hayden's Newark Community Union Project (NCUP), which had been accused by Newark police as one of the instigators of the Newark "riot."

Len and I were both a bit reluctant to sue our old friend Dick Hughes, but we found the case so intriguing that we agreed to undertake it as co-counsel. I handled most of the brief writing, while Len, an outstanding court room lawyer, did most of the trial preparations.

The primary legal issue was the constitutionality of the search. The Fourth Amendment to the U.S. Constitution forbids government agents from entering and searching a person's home without a warrant issued by a judge unless there are some kind of exigent circumstances.

The State claimed that a declaration of emergency signed by the state's Chief Executive could substitute for a search warrant. We responded that even if a genuine emergency might justify a search, there was no emergency at the time of the search and the Governor's declaration was stale. The law at the time was unsettled as to whether a state's chief executive could be sued for damages for violating citizens' constitutional rights. We had to sue Hughes personally because the state itself was immune from suits for damages.

Our litigation position was undermined by what I assume was a fortuitous occurrence. After we filed suit in Federal Court against Hughes, the governor filed a third-party complaint against the State of New Jersey for indemnification in the event he should be held liable to pay damages to the plaintiffs. The Attorney General's office assigned
William J. Brennan III, son of the Supreme Court Justice, to represent the State.

Len and I were nervous about the issue of executive immunity from suits for damages. The liberal Warren Court had been in the process of stripping immunity from public officials in suits for damages, but those decision were often 5 to 4, with Justice Brennan invariably a member of the pro-civil rights majority. We recognized that because of his son's involvement in the case, Brennan would be compelled to recuse himself if the case ever reached the Supreme Court and we would be deprived of his possibly decisive vote. As a consequence, the defendants had some unusual leverage against us if they were of a mind to settle out of court. And that is what eventually happened.

However, we had some leverage of our own. Hughes was completing his second term as governor and was ineligible to run again. He did not want to leave office with the threat of personal liability hanging over his head and little bargaining power left vis-a-vis the state Legislature.

So when his counsel suggested a monetary settlement during the waning days of his administration, both sides were in a mood to bargain. We agreed on a figure of $40,000 to be divided among the ACLU for its fees and costs, and the plaintiffs. Each of the 63 plaintiffs received a minimum payment of $100, and the remaining damages were apportioned according to individual loss, such as property damage and emotional suffering. The largest payment went to a mother who was nursing her baby when the troopers burst in on her.

In one of his final acts before leaving office, Governor Hughes got the Legislature to approve the settlement and appropriate the payments from the state treasury.

In 1974, the U.S. Supreme Court finally ruled, in a case involving the dovernor of Ohio, that a state's chief executive is not entitled to absolute immunity from suits for damages for violation of constitutional rights.

Knowing Dick Hughes' commitment to constitutional principles, which he later often demonstrated as Chief Justice of New Jersey after leaving the governor's office, I often assumed that he recognized that he had behaved questionably in authorizing the Plainfield searches, and was glad to have the plaintiffs compensated for the injustice done to them - so long as the $40,000 did not come out of his own pocket.